‘Cross-Dressing’ Ban Ruled Unconstitutional
Malaysian authorities frequently abuse transgender women at the expense of their dignity and in violation of their rights. The court’s ruling should send the message that Religious Department and other officials can’t just do what they like to transgender women.
(New York) – A Malaysian appeals court ruling that a ban on cross-dressing was unconstitutional is an important victory for the rights of transgender people in Malaysia, Human Rights Watch said today.
On November 7, 2014, a three-judge panel of the Putrajaya Court of Appeal said that a state Sharia-law ban on cross-dressing was “degrading, oppressive and inhuman” and that so long as it was in force, transgender people “will continue to live in uncertainty, misery and indignity.”
“The court’s rejection of the ban on cross-dressing was a strong affirmation of the rights of transgender people in Malaysia,” said Boris Dittrich, lesbian, gay, bisexual and transgender (LGBT) rights advocacy director at Human Rights Watch “By upholding the constitution over a discriminatory state law, the court is saying all Malaysians can express themselves as the people they want to be.” The case was filed by transgender women in Malaysia who challenged section 66 of the Sharia law in Negeri Sembilan state, which prohibits “any male person who in any public place wears a woman’s attire or poses as a woman.” The state’s Religious Department has used this law repeatedly to arrest transgender women – most recently, in a mass arrest of 16 transgender women at a wedding party on the night of June 8, 2014.
The Court of Appeal ruled that section 66 was unconstitutional and void because it violated the appellants’ rights to live with dignity, earn a livelihood, and directly affects their freedom of movement, expression, and equal protection of the law. The court stated that transgender people “will commit the crime of violating section 66 the very moment they leave their homes to attend to the basic needs of life, to earn a living, or to socialize; and be liable to arrest, detention and prosecution. This is degrading, oppressive and inhuman. … [It is] discriminatory and oppressive and denies the appellants the equal protection of the law.”
“Malaysian authorities frequently abuse transgender women at the expense of their dignity and in violation of their rights,” Dittrich said. “The court’s ruling should send the message that Religious Department and other officials can’t just do what they like to transgender women.”
Human Rights Watch released a September 2014 report, “I’m Scared to Be a Woman: Human Rights Abuses against Transgender People in Malaysia,” which documents government abuses against transgender people in Malaysia. In research in four Malaysian states and the federal territory of Kuala Lumpur, Human Rights Watch found that state Religious Department officials and police regularly arrest transgender women and subject them to various abuses, including assault, extortion, and violations of their privacy rights. Religious Department officials have physically and sexually assaulted transgender women during arrest or in custody, and humiliated them by parading them before the media.
Transgender people in Malaysia face criminal prosecution and discrimination in accessing employment, health care, and education, as well for “cross dressing.” The Malaysian government should urgently seek the repeal of all laws and regulations that discriminate against transgender people, Human Rights Watch said.
Muslims, who according to government statistics make up about 60 percent of Malaysia’s population, are subject to state-level Sharia (Islamic law) ordinances, in addition to the federal criminal law. Since the 1980s, every state has passed Sharia criminal enactments that institutionalize discrimination against transgender people. All 13 Malaysian states prohibit Muslim men from “dressing as women,” while three states also criminalize “women posing as men.” The laws, enforced by state Islamic Religious Departments, do not define what constitutes transgender dressing or posing.
“This ruling puts the Malaysian government on notice that all laws discriminating against transgender people could be unconstitutional,” Dittrich said. “The government urgently needs to scrap its discriminatory laws and protect transgender people. The authorities, like the court, should recognize that transgender people have the same rights as all Malaysians.”